S. 311 CrPC | Court Can't Refuse To Examine Witness Merely Because He Is A 'Surrendered Maoist': Orissa High Court

The Orissa High Court has held that a trial Court cannot decline to summon a witness, under Section 311 of the Code of Criminal Procedure, 1973 (CrPC), to examine and record his testimony merely on the ground that he has previously been a Maoist. [2026 LiveLaw (Ori) 72]While setting aside the trial Court order denying to summon a surrendered Maoist as a witness, the Bench Dr. Justice Sanjeeb Kumar Panigrahi held that at the stage of summoning of witness, the Court must not be bothered by the “evidentiary worth” of such witness. In the words of the Court –“The principal reason appearing from the impugned order is that the witness is a surrendered Maoist. In the considered view of this Court, such circumstance by itself cannot constitute a valid ground to refuse his examination. The evidentiary value of the testimony of a witness is a matter for appreciation at the stage of final adjudication after the witness is examined and subjected to cross-examination. At the stage of considering an application under Section 311 Cr.P.C., the Court is concerned with the relevance of the proposed evidence and not with its ultimate evidentiary worth.”The case emanated from a naxal attack on a BSF troop in the year 2012. It is alleged that, in furtherance of their common object, the accused persons caused a pre-planned landmine blast targeting a Bolero vehicle carrying BSF personnel. It is further alleged that the accused persons thereafter resorted to indiscriminate firing and grenade lobbing at the occupants of the vehicle, resulting in the death of four BSF personnel. After the incident, the arms, ammunition and other belongings of the deceased personnel were looted.Initially, an FIR was registered by the police, which was later on re-registered as an NIA case. During the course of investigation, the police arrested the present opposite party (OP)- Gameli Chinna Rao and seized multiple articles. Significantly, a 9 mm pistol was recovered from the possession of the OP, which was originally issued to one of the martyrs in the aforesaid incident. Accordingly, the OP was implicated in the NIA case for larger conspiracy.Upon completion of investigation, charges were framed under Sections 147, 148, 121/149, 121-A/149, 122/149, 124-A/149, 324/149, 326/149, 307/149, 302/149, 395/149 and 412 of the IPC, Sections 25 and 27 of the Arms Act, Sections 3, 4 and 5 of the Explosive Substances Act, Sections 16 and 17 of the Criminal Law Amendment Act, and Section 16 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).After conclusion of examination of witnesses, an application was filed by the prosecution under Section 311 CrPC to summon four witnesses, including one Nobisa Sirka @ Azad, a surrendered Maoist, who was examined during the investigation and was cited as a charge-sheet witness but was inadvertently left out during the trial. The Sessions Judge-cum-Special Judge (NIA), Khurda partially allowed the application for three other witnesses but denied to summon the surrendered Maoist.The petitioner–State (NIA) submitted that refusal to summon a witness cited in the charge-sheet, particularly in a case involving offences under special enactments and issues concerning national security, causes serious prejudice to the prosecution and may result in a miscarriage of justice.Upon hearing the parties, Justice Panigrahi recapitulated the principles governing adjudication of Section 311 applications by dwelling upon the jurisprudence settled by the Apex Court in the cases of Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) and Swapan Kumar Chatterjee v. Central Bureau of Investigation (2019). It was made clear that the determinative factor for allowing such application is whether the evidence sought to be adduced appears to be essential for a just decision of the case.The Judge noted that the trial Court did not assign any specific reason for denying to summon the said witness. The principal underlying reason which could be gathered from the impugned order was that the witness was a “surrendered Maoist”. However, the Court ruled that such status of the witness cannot be a ground to deny his examination, since the trial Court ought to adjudge the relevance of his evidence at that stage and not its credibility.“It is also relevant to note that the witness sought to be examined is not a new witness sought to be introduced at a belated stage and that he was cited as a prosecution witness in the charge-sheet itself. The prosecution asserts that his examination is necessary for proving aspects of its case and that his omission earlier was inadvertent. There is nothing brought to the notice of this Court to indicate that the prosecution seeks to alter the nature of its case or introduce any altogether new material through the proposed examination,” the Court added.Accordingly, the impugned order of the trial Court was set aside and the Sessions Judge was asked to take appropriate steps for securing attendance of the witness and record...

S. 311 CrPC | Court Can't Refuse To Examine Witness Merely Because He Is A 'Surrendered Maoist': Orissa High Court

LIVELAW NEWS NETWORK

This is a premium content
Available exclusively to
Our subscribers

INR 1099+GST

Tags

LIVELAW NEWS NETWORK

S. 311 CrPC | Court Can't Refuse To Examine Witness Merely Because He Is A 'Surrendered Maoist': Orissa High Court

LIVELAW NEWS NETWORK

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

LIVELAW NEWS NETWORK

This is a premium content
Available exclusively to
Our subscribers